Citation Nr: 1415611
Decision Date: 04/09/14 Archive Date: 04/15/14
DOCKET NO. 11-10 552 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic obstructive pulmonary disease ("COPD"), to include as secondary to service-connected residuals, compression fracture T-12 (thoracic spine).
ATTORNEY FOR THE BOARD
T. Y. Hawkins, Counsel
INTRODUCTION
The Veteran served on active duty from June 1965 to June 1969.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In January 2011, the Board remanded the claim to the Agency of Original Jurisdiction so that a Statement of the Case could be issued to the Veteran. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
Review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) reveals documents that are not pertinent to the present appeal.
FINDINGS OF FACT
1. An unappealed March 2003 rating decision denied service connection for COPD, also claimed as secondary to service-connected residuals, compression fracture T-12, on the basis that the evidence showed no causal relationship between the Veteran's COPD and active duty service or residuals, compression fracture T-12.
2. The evidence received since the March 2003 rating decision is either cumulative or redundant, and when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim.
CONCLUSIONS OF LAW
1. The March 2003 rating decision that denied service connection for COPD, also claimed as secondary to service-connected residuals, compression fracture T-12, is final. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2013); 38 C.F.R. § 20.1100 (2013).
2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for COPD has not been received; the claim may not be reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R.
§ 3.156(a) (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (Secretary). See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless.
The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded.
Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, as well as the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.
VA satisfied the notification requirements of the VCAA by means of a December 2012 pre-adjudication letter, which informed the Veteran of the criteria pertaining to what constitutes new and material evidence, the types of evidence needed in order to substantiate his underlying service connection claim, the division of responsibility between him and VA for obtaining the required evidence, and requested that he provide any evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The letter informed the Veteran of the specific reason(s) for the previous denial. A subsequent letter, dated March 2006, satisfied the requirements of Dingess/Hartman, by providing information regarding how VA assigns the disability rating and effective date elements of a claim.
The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service treatment records and post service VA and private treatment records. The claims folder also contains medical records from the Social Security Administration ("SSA"), which show that the Veteran is not receiving SSA disability benefits for COPD. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Moreover, VA does not have a duty to provide a VA examination if the claim is not reopened. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d at 1355-57 (Fed. Cir. 2003).
In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA.
Analysis
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303(a) (2013). Service connection requires competent evidence showing the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111(2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).
Service connection is generally precluded for disabilities caused by using tobacco. See also 38 U.S.C.A. § 1103 and 38 C.F.R. § 3.300(a) (2012) (generally prohibiting service connection for death or disability due to an injury or disease attributable to the use of tobacco products by a veteran during active service); cf. VAOPGCPREC 6-2003 (October 28, 2003) (service connection is not precluded secondary to tobacco use after the veteran's service where a tobacco use disorder is proximately due to a service-connected disability).
The issue for resolution before the Board is whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for COPD.
The Veteran claims that he developed a chronic cough and, eventually, COPD, as a result of being exposed to smoke from weapons during active duty service in the Republic of Vietnam. He has also suggested that, because the service provided him with cigarettes, the government should bear the responsibility for any tobacco-related diseases. Additionally, he has alleged that his COPD is secondary to his service-connected residuals, compression fracture T-12. Service treatment records, however, show no evidence of complaints of, treatment for, or a diagnosis of COPD during active duty service. Moreover, because COPD is not one of the conditions subject to presumptive service connection for chronic diseases under the provisions of 38 C.F.R. § 3.309(a), service connection on a presumptive basis is not applicable. Moreover, there has been no probative evidence presented to show a relationship between, the Veteran's residuals, compression fracture T-12 and COPD.
Following the issuance of the March 2003 rating decision and March 2003 notification letter, a timely notice of disagreement was not received; as such, the Veteran did not perfect an appeal of the decision. Therefore, that decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. As such, the decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. § 5108, 7104; 38 C.F.R. § 3.156.
Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with
respect to the claim that has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a).
"New" evidence means evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative, nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).
According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992).
The evidence received since the last prior denial includes updated VA treatment records showing that the Veteran has a current diagnosis of COPD, private treatment reports from Kettering Medical Center, internet articles about weapons used in Vietnam, and the Veteran's statements in support of his claim. The private treatment are copies of those that were before the RO in March 2003 and, therefore, are not new. With respect to the new VA treatment reports, they are not material because, although they show that the Veteran has been diagnosed with COPD, they fail to demonstrate a nexus between the disease and any aspect of active duty service or the Veteran's service-connected residuals, compression fracture T-12. The internet articles are not material, as they show no connection between the Veteran's COPD and active duty service.
With regard to the Veteran's personal statements, , the Board finds that these assertions do not constitute new and material evidence, as they are merely a restatement of his previous contentions made at the time of his original claim, and thus, are not new.
Accordingly, the Board finds that, while some of the medical evidence received since the March 2003 rating decision is new, because it does not raise a reasonable possibility of substantiating the Veteran's claim, it does not constitute material evidence sufficient to reopen his claim of entitlement to service connection for COPD. Therefore, as new and material evidence has not been received, the Veteran's petition to reopen his claim is denied.
ORDER
New and material evidence not having been received, the request to reopen the claim of entitlement to service connection for COPD, to include as secondary to service-connected residuals, compression fracture T-12, is denied.
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KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs